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Kashmir conundrum and the international law

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The scrapping of article 370 and subsequent annexation and illegal occupation of the state of Jammu and Kashmir by India has once again, brought the seven-decades-old Kashmir issue, a prime cause of friction between two nuclear states India and Pakistan into international limelight. Before this constitutional catastrophe, the state had special status, separate laws, constitution, and flag. This special status has been revoked in utter contravention of UNSC resolutions and international law.

This mala fide move by Modi government is indubitably aimed at eclipsing the importance of the issue of Kashmir by localizing it and thereby   putting it on backburner.  However, the irrefutable fact is that the Kashmir is a disputed territory between India and Pakistan, and recognized as such, without any reservation, by international community.

Amid Indo-Pak partition, Under Article 2 (4) of the independence act of India, the princely states were given choice to join “either of the new Dominions”. While it was an easy decision for some princely states due to their geographical proximity, territorial contiguity or political and religious affiliation of the rulers and subjects, the accession of the State of Jammu and Kashmir emerged as a chronic conundrum and a nuclear flash point between two nuclear countries India and Pakistan.

 To add, in the beginning, the ruler of the state, Maharaja Hari Singh, toyed with the idea of remaining independent. However, Indian machinations spearheaded by Congress leaders including Nehru and Patel created such circumstances for maharaja that left him with no option but to capitulate to their demand of  “ Accession of state of Jammu and Kashmir  to India”.  Hence, Hari Singh, due to unwarranted conditions, forged by the Indian Machiavellian masterminds, had to agree to sign the instrument of accession with India.  Thus, On October 27, 1947, the governor general of India approved the accession with the condition that “as soon as law and order were restored in Kashmir…the question of [the] state’s accession should be settled by a reference to the people [of Jammu and Kashmir].”

The purported Instrument of Accession (which India has failed to produce) denies the authority of any unilateral action by India. The terms of this Instrument would not be varied by any amendment of the Indian Independence Act, 1947 without acceptance of the ruler of the state (clause 5). Further, nothing in the Instrument could have been deemed to be a commitment as to acceptance of any future constitution of India and nothing could affect the sovereignty of the Maharaja over the state (clause 7 and 8).

 So far as the internationalization of the issue of Kashmir is concerned, it is India that took the issue to international forum by knocking at the door of UN security council back in January 1, 1948, resultantly the Council, via UNSCR 38, called upon the contending governments to refrain from aggravating the circumstances and report any material changes on the ground. Thereafter, the Security Council over a number of years issued a total of 17 resolutions on the disputes status of Kashmir. UNSCR 47 of 1948, the most important of roughly all resolutions on kashmir, calls for the resolution of the dispute of Kashmir’s accession to either India or Pakistan through effecting the democratic means of a free and impartial plebiscite.

Simla agreement is another worth quoting document ,deemed as  the premier bilateral accord between the warring nations, it holds that “principles and purposes of the Charter of the United Nations shall govern the relations between the countries”, hence shining light on the validity of the UNSC resolutions on Kashmir. The disputed nature of the issue is further reiterated as, “In Jammu and Kashmir, the Line of Control resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognized position of either side.

Moreover, the same Simla Agreement also forbids unilateral action to change the status of the state. Clause 1(ii) of the agreement specifically states that neither side shall unilaterally alter the situation. Clause 6 further emphasizes that both the countries should discuss modalities for a final settlement of the state through diplomatic means. Thus, India’s claim that the revocation of Occupied Kashmir’s ‘special status’ is its internal issue negates its commitment under the agreement.

 Additionally, the right of self-determination is the basic principle of the united Nation charter which has been reaffirmed in the universal declaration of human rights, and applied countless times to the settlement of international issues. The concept played significant role in post-world war I settlement, leading for example to plebiscite in a number of disputed areas.

However, in 1945 the establishment of UN gave a new dimension to the principal of self-determination. It was made one of the objectives which the UN would seek to achieve, along with equal rights of all nations.

The principle of self-determination and the maintenance of international peace and security are inseparable. For example, the denial of this right to self-determination to the people of Kashmir has brought the two neighboring countries in South Asia — India and Pakistan to the brink of nuclear catastrophe.

Apart from the specific UN resolutions which guarantee Kashmiris’ the right to self-determination, the UN Charter in Article 1(2) declared one of its purposes as, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. This serves as the biggest impetus to the said right under international law.

In 1952, the General Assembly further expounded this principle and stated in Resolution 637A(VII), that ‘the right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights’ and recommended that UN members ‘shall uphold the principle of self-determination of all peoples and nations’. The Declaration on the Granting of Independence to Colonial Countries and Peoples enshrined in GA resolution 1514 of 1960 upheld the right to self-determination. The resolution explicitly says, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

What’s more to say is that the principle of self-determination was given overwhelming protection in Article 1 of both International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). In 1966, these two covenants enshrined the self-determination principle verbatim as was laid in GA resolution 1514. The Declaration of Principles of International Law Concerning Friendly Relations (GA Resolution 2625 of 1970) went further in recognizing that peoples resisting forcible suppression of their claim to self-determination are entitled to seek and receive support in accordance with the purposes and principles of the Charter. Since the adoption of the Declaration in 1970, the ICJ has, on a number of occasions, confirmed that the principle of self-determination constitutes a binding norm of customary international law and even a rule of jus cogens- peremptory rule of international law. Thus, international law and the specific UNSC resolutions on Kashmir uphold and provide the Kashmiris with the overriding principle of right to self-determination.

Inter alia, by the revoking the state’s ‘special status’, the situation has now become an ‘occupation’ with an ‘unlawful annexation’. India is an Occupying Power and it has unlawfully annexed the state. From international legal opinion on the issue of self-determination, as developed in the aftermath of the Second World War and the process of decolonization, the fate of millions of people cannot be left to the whims of India. Given the UN General Assembly’s resolution of 1960 concerning Declaration on the Granting of Independence to Colonial Countries and Peoples, the people of Jammu and Kashmir have every right to self-determination.

India has no title on the state under international law. India’s illegal occupation since 1947; denial of the right to self-determination of the people; application of India’s constitution by removing the state’s special status, makes India an Occupying Power and its army a hostile force. The BJP’s recent attempt to include the territory of the state within the Union’s territory of India is an act of ‘occupation’ and ‘illegal annexation.

 While commenting on Article 47 of the Geneva Convention IV, jurist Jean S Pictet explains that the Occupying Power is the administrator of the territory and is under various positive obligations towards the Occupied Population (ie the Occupying Power cannot annex the Occupied Territory or change its political status). Jean elaborates that the Occupying Power must respect and maintain the political and other institutions of the Occupied Territory. Therefore, India being an Occupying Power cannot annex the state’s territory and is bound to keep the state’s institutions and territorial boundaries intact till the conduct of plebiscite under the UNSC resolution 1948.

The International Commission of Jurists has categorically stated that “the Indian government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people [of Jammu and Kashmir] under… international law”.

To cap it all, the world powers should take a leaf from the statement made on June 15, 1962 by American representative to the UN, Adlai Stevenson” the best approach is to take for a point of departure the area of common ground which exists between the parties. I refer of course to the resolutions which were accepted by both parties and which in essence provide for demilitarization of the territory and a plebiscite whereby the population may freely decide the future status of Jammu and Kashmir.”

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International Law

Undemocratic United Nations and Global Peace

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War is not the solution to any problem rather war is a problem itself. Many countries believe in diplomacy and peaceful means of problem-solving and conflict resolution. But, unfortunately, many nations still seek solutions of problems and continuity of politics in wars.

If we look at any newspaper, we find too many armed conflicts going on around the globe. To name a few would include a catastrophic war between Russian Federation and Ukraine which has caused tens of thousands of casualties, with millions displaced. Decades-long civil wars and subsequent US-led NATO intervention and withdrawal has brought Afghanistan to the brink of famine and hunger. The whole Middle Eastern region is unstable and striving with civil wars for long. The Arab -Israel conflict and Kashmir Dispute have been there for more than seven decades.

Above-mentioned and many others examples of armed conflicts prove that there is no durable peace in the world. Here one thing that needs to be noted is that conflict is always inevitable among individuals, societies and nations, because the interests of individuals, societies and nations do not always converge. When there is divergence of interests, conflict arises.

What is needed to be done is the resolution of these conflicts. There are two ways to resolve conflicts: one is violent way (use of force) and the other is peaceful way (diplomacy and negotiations). More than seven decades ago, after World War 2, nations realized that war is not solution to any problem and they established United Nations Organization (UNO). Primary objective of UN was and is the maintenance of peace and security in the world.

But, if we look at history, it seems the UN has failed to achieve international peace and security. UN may have had role in preventing the outbreak of another world war, but it could not stop a series of conflicts from Korea, Vietnam to Afghanistan (during Cold War), and from Africa, Middle East to ongoing Russian-Ukraine conflict.

This is a question mark on the credibility of UN, that why the UN despite being guardian of international peace and security cannot stop wars.

UN has six principal organs and many Specialized Agencies and Funds for different tasks.  Among them Security Council is the most powerful Organ and is mandated with enforcing international peace and security. UNSC uses two tools to enforce its decisions, one is applications of sanctions and the other is use of force (intervention).

However the concentration of power in the hands of five permanent states of Security Council, namely the United States, United Kingdom, France, China and Russia have been problematic. These five countries use veto power whenever they perceive any resolution to be against their national interest or against the interests of their allies. Throughout the Cold War, US and USSR had paralyzed UN by vetoing resolutions. Same happened with any other conflict including when US drafted a resolution to stop the war in Ukraine.

So, it is crystal clear that if UN (specifically Security Council) is not reformed, UN can not achieve its primary goal i.e. maintenance of peace and security. UN members and experts have talked about reform in Security Council. Experts have also given suggestions and proposals to make UN more democratic and representative. One of those proposals is abandoning veto and doubling the size of SC members. This can make UN more democratic and representative to some extent. But this is not an easy job. Firstly, because P5 are reluctant to abandon this privileged position (veto power). Secondly, countries hoping for permanent membership are opposed by other countries. For example, many European countries object Germany’s membership. Pakistan objects to India’s membership.

 Experts believe the solutions could be the democratization of UN system (particularly UNSC). This is done by involving General Assembly in the decision making regarding international peace and security. General Assembly is a symbol of democracy, representing almost all the states on the globe. Simple or two-third majority must be mandatory to make any decision regarding international peace and security. This could stop any powerful state to use UN as a tool for its own vested national interest , and the decision of majority will prevail. All the states, big and small, powerful and weak will have equal say in the UN. Otherwise the possibility of wars, violence, genocide and injustice will further increase.

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United States thinks it’s ‘the exception to the rules of war’

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The architects of those Nuremberg trials—representatives of the United States, the Soviet Union, the United Kingdom and France fully expected that the new United Nations would establish a permanent court where war criminals who couldn’t be tried in their home countries might be brought to justice. In the end, it took more than half a century to establish the International Criminal Court (ICC). Only in 1998 did 60 nations adopt the ICC’s founding document, the Rome Statute. Today, 123 countries have signed.

Guess what superpower has never signed the ICC? Here are a few hints? – writes Rebecca Gordon in an article at “The Nation”:

Its 2021 military budget dwarfed that of the next nine countries combined and was 1.5 times the size of what the world’s other 144 countries with such budgets spent on defense that year.

Its president has just signed a $1.7 trillion spending bill for 2023, more than half of which is devoted to “defense” (and that, in turn, is only part of that country’s full national security budget).

It operates roughly 750 publicly acknowledged military bases in at least 80 countries.

In 2003, it began an aggressive, unprovoked (and disastrous) war by invading a country 6,900 miles away.

Yes! The United States is that Great Exception to the rules of war.

While, in 2000, during the waning days of his presidency, Bill Clinton did sign the Rome Statute, the Senate never ratified it. Then, in 2002, as the Bush administration was ramping up its Global War on Terror, including its disastrous occupation of Afghanistan and an illegal CIA global torture program, the United States simply withdrew its signature entirely. Secretary of Defense Donald Rumsfeld (photo) then explained why this way:

“The ICC provisions claim the authority to detain and try American citizens — U.S. soldiers, sailors, airmen and Marines, as well as current and future officials — even though the United States has not given its consent to be bound by the treaty. When the ICC treaty enters into force, U.S. citizens will be exposed to the risk of prosecution by a court that is unaccountable to the American people, and that has no obligation to respect the Constitutional rights of our citizens.”

The assumption built into Rumsfeld’s explanation was that there was something special — even exceptional — about US citizens. Unlike the rest of the world, we have “Constitutional rights,” which apparently include the right to commit war crimes with impunity.

Even if a citizen is convicted of such a crime in a US court, he or she has a good chance of receiving a presidential pardon. And were such a person to turn out to be one of the “current and future officials” Rumsfeld mentioned, his or her chance of being hauled into court would be about the same as mine of someday being appointed secretary of defense.

The United States is not a member of the ICC, but, as it happens, Afghanistan is. In 2018, the court’s chief prosecutor, Fatou Bensouda, formally requested that a case be opened for war crimes committed in that country. ‘The New York Times’ reported that Bensouda’s “inquiry would mostly focus on large-scale crimes against civilians attributed to the Taliban and Afghan government forces.” However, it would also examine “alleged C.I.A. and American military abuse in detention centers in Afghanistan in 2003 and 2004, and at sites in Poland, Lithuania, and Romania, putting the court directly at odds with the United States.”

Bensouda planned an evidence-gathering trip to the United States, but in April 2019, the Trump administration revoked her visa, preventing her from interviewing any witnesses here. It then followed up with financial sanctions on Bensouda and another ICC prosecutor, Phakiso Mochochoko.

So where do those potential Afghan cases stand today? A new prosecutor, Karim Khan, took over as 2021 ended. He announced that the investigation would indeed go forward, but that acts of the United States and allies like the United Kingdom would not be examined. He would instead focus on actions of the Taliban and the Afghan offshoot of the Islamic State.

When it comes to potential war crimes, the United States remains the Great Exception. Wouldn’t it be wonderful if we were just a little less exceptional?

If, for instance, in this new year, we were to transfer some of those hundreds of billions of dollars Congress and the Biden administration have just committed to enriching corporate weapons makers, while propping up an ultimately unsustainable military apparatus, to the actual needs of Americans?

Wouldn’t it be wonderful if just a little of that money were put into a new child tax credit? – asks Rebecca Gordon.

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International Law

Selective Standards: Fight Against Oppression or Just a Geopolitical Showdown for Global Supremacy?

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The karma of destiny is perhaps the most patent representation of natural balance one could witness in a lifetime. The global divide between democracy and autocracy has been a mainstay of western diplomacy since the days of the Cold War. ‘Rule-based International Order’ has been the de facto foreign policy of subsequent western administrations – the United States, in particular. One would assume that the virtue of such an altruistic agenda would extend universally regardless of caste, creed, and ethnicity. But unfortunately, while nature could prove occasionally unfair, each successive American regime sets new records of cant and hypocrisy, as if trying to remind us of its duplicitous existence and deviant machinations.

The war in Ukraine was the grotesque highlight of the year 2022. But what notably garnered considerable spotlight was the western unity against Russian maneuvers. Placing crippling sanctions on the Kremlin – done. Cutting energy imports from Russia – mission accomplished. Military and humanitarian aid to Ukraine – $65 billion have already been appropriated to Kyiv, while an additional $47 billion got approved in a $1.7 trillion government funding bill signed by President Biden. What else? Oh, yes! Sanctions on Iran for supplying military drones to Russia, allegedly used in surveillance and targeted attacks on Ukrainian energy infrastructure. Russia got ejected from the United Nations Human Rights Council (UNHRC), ridiculed in the UN General Assembly (UNGA), and suspended from the Group of Eight (G8) in 2014 for annexing Crimea. All in the name of, and I quote the US Secretary of State Antony Blinken, “defense of the UN Charter and in resolute opposition to Russia’s devastating war of aggression against Ukraine and its people.” Well, is the defense of the UN Charter absolute or subject to the selective judgment of the United States? Is all aggression against any innocent civilians culpable, or just Russian predation against innocent denizens of Ukraine? The answer was pretty evident on (ironically) the last day of the year that would remain earmarked in history as the year of the notorious Russian invasion of Ukraine.

The UNGA voted on a resolution calling on the International Court of Justice (ICJ) to opine on the legal consequences of Israel’s illegal occupation of Palestinian territories. Today, Israel colonizes swathes of Palestinian land beyond the borders established under the 1947 UN Partition Plan (contentious in itself to begin with). Since the 1967 Arab-Israeli War, this illegal occupation also includes Gaza, East Jerusalem, and the West Bank. The resolution passed 87 to 26 with 53 abstentions. Unsurprisingly, the typical states opposing the resolution were the United States and Britain – the flag-bearers of justice in the Russian war in Ukraine. The same standard-bearers of international law that applauded Ukrainian President Volodymyr Zelenskyy for dragging Russia to the ICJ before Russian forces even fully penetrated the Ukrainian borders. It is another rueful example of a shameless display of hypocrisy on the geopolitical canvas. And it would’ve been tragicomical had it not been par for the course – a historical cliche!

Last month, two US lawmakers: namely House Reps. Steve Cohen and Joe Wilson, introduced a bipartisan congressional resolution calling on President Biden to boot Russia from the United Nations Security Council (UNSC) for its “flagrant violations” of the UN Charter, including its illegal naturalization of four Ukrainian oblasts and committing atrocities against civilians in Ukraine. While the expulsion proceedings of a permanent member of the UNSC are both obscure and (frankly) unrealistic without Russian consent, this scenario is spectacularly ironic.

In November 1967, the members of the UNSC voted unanimously for Resolution 242: calling out Israel to withdraw from the annexed territories seized in the Six-Day War. Yet 55 years later, Israel not only continues to violate the resolution, it also proceeds to expand settlements on expropriated Palestinian land with impunity. In the last five decades, the Israeli regime has demolished over 28,000 Palestinian homes in the occupied territory; spawned more than 200 settlements and outposts. And between 600,000 and 750,000 Jewish settlers have been transferred to the West Bank and East Jerusalem. The violence against Palestinians has never ceased.

According to the data from the UN Office of the High Commissioner for Human Rights (OHCHR), a total of 424 children have been killed in Ukraine by Russian barbarity. Apartment blocks razed mercilessly; the electricity grid battered to the brink of collapse. The United States has termed it a ’systemic’ assault on humanity, and President Biden even called it a “genocide.” The same department (OHCHR) reported in May 2021 that the Israeli bombardment of the Gaza Strip killed 242 Palestinian children. Was Israel punished for its war crimes? Far from it. President Biden recently congratulated the incoming Israeli Prime Minister Benjamin Netanyahu, the architect of the 11-day war in 2021, on forming the government – terming him as his “friend for decades” while conspicuously ignoring concerns regarding the inclusion of far-right racist politicians in the new cabinet.

The US officials have always maintained a programmed PR narrative of “Israel’s right to defend itself.” From what, children? According to the World Health Organization (WHO), Israeli aggression in Gaza displaced more than 74,000 Palestinians, including 7,000 children without a roof, scant food supplies, and virtually no access to medical assistance. The WHO also reported the decimation of 30 health facilities in Gaza due to Israeli airstrikes. Yet, annualized military aid to the tune of $3.8 billion continues to flow to Israel from the United States. What more to explain other than the absolute mockery of international law; the farce of diplomacy of human rights and equitable justice at the behest of the apparently puritanical United States of America.

History is riddled with numerous examples of American duplicity. The American acquiescence to the Israeli invasion of Lebanon in 1982, which eventually galvanized the Shiite Islamist group Hezbollah. The United States vetoed the UNSC resolution – one of its 53 vetoes time and again used to shield Israel from global denunciation – calling for Israel’s immediate withdrawal from southern Lebanon. An estimated 49,600 Palestinian and Lebanese civilians died during the occupation. And then there are glaring examples of American interventions. Its outright support to the Afghan Mujahideen against the Soviet Union and the subsequent provenance of the Taliban regime in Afghanistan. How can one forget the devastating invasion of Iraq on the utterly bogus canard of Saddam Hussein wielding Weapons of Mass Destruction (WMD). Between 2003 and 2006, the US-led assault resulted in over 655,000 Iraqi civilian casualties, primarily due to the indiscriminate aerial bombardment by the US forces on Iraqi towns and cities. And the civil vacuum engendered in wake of the Iraq War served as a breeding ground for radical offshoots of Al-Qaeda – later accreting under the banner of the Islamic State (IS). How can a country such as America still enjoy a moral high ground when its historical scroll stands emblazoned with unilateral aggression, illegal intervention, and unabashed prevention of justice against its genocidal allies?

The war in Ukraine is a blood-strewn conflict but a rendition of complex realpolitik import and balance of regional power dynamics. Opposing Russian cruelty should not implicitly spell out support for American rhetoric. One could still stand with Ukrainians while denouncing its backers in the name of universal covenants of justice. All humans are entitled to the right to life, security, freedom, and dignity. These fundamental rights should not waver based on alliances – political, ideological, ethnic, or otherwise.

While the passage of this UNGA resolution is a promising sign of growing global consciousness, it won’t yield any significant, policy-altering outcomes. In 2004, the ICJ weighed on the issue of Israeli occupation and ruled that the wall in the occupied West Bank and Jerusalem was illegal. In response, Israel termed The Hague ‘politically motivated’ and rejected the ruling. Similarly, the Permanent Representative of Israel to the United Nations Gilad Erdan, speaking ahead of the vote, characterized this resolution as “a moral stain on the UN,” further arguing that “no international body can decide that the Jewish people are occupiers of their own homeland.” Russia makes an eerily similar argument about Ukraine; Russian President Vladimir Putin aspires to ‘Reunify the Soviet Motherland.’ Even China’s President Xi Jinping posits a parallel assertion regarding the ‘reunification’ of Taiwan with the Chinese motherland. The resemblance is uncanny. But while the US continues to support Ukraine to wrestle back lost territory from Russian troops; continues to arm Taiwan to defend against a potential amphibious invasion from China, plans are effectively underway to move the US embassy to Jerusalem – a tacit nod to Donald Trump’s aberrant recognition of Jerusalem as Israel’s capital – despite the city’s disputed status under the international law. I reckon the words of Ms. Tirana Hassan, the acting executive director at Human Rights Watch (HRW), in her introductory essay in the HRW World Report 2023 aptly bewail these double standards: “[In] a world in which power has shifted, it is no longer possible to rely on a small group of mostly Global North governments to defend human rights.

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